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Defining Key Policing Terms

Submitted by Stuart on Wed, 06/15/2016 - 10:43

In the spring semester of 2016, I taught a seminar in the Harvard History Department called The History of Policing in the United States. It was a wonderful experience, chiefly because of the brilliant and hard-working students. In one of the first weeks of the seminar, we read the famous "Broken Windows" article by George Kelling and James Q. Wilson from The Atlantic Monthly, published in 1982, as well as a critique of it published soon thereafter by Samuel Walker in Justice Quarterly. Over the semester, the class discussions continually referred to issues these articles raised, about police tactics, police philosophy, police reform, and the uses of history to shape, legitimize, and critique policing.

As I was preparing for our initial discussion of these readings, and because I was also writing a short article on broken windows policing at the time (in Harvard Design Magazine), I found it necessary to do some parsing of muddy terms. The terms are Broken Windows, Quality of Life, Zero Tolerance, Stop and Frisk, and Order Maintenance.

Police institutions and police officers themselves often use specialized language and jargon, much like many other professional fields. Jargon distinguishes members of the profession from outsiders. It can draw them together, giving cohesion. It can also reinforce an us-versus-them attitude. But just because the jargon exists and can be used to obfuscate doesn't mean it is impenetrable, imprecise, or intentionally misleading. To understand the meaning of insider terminology can be very important to get a handle on the what, how, and why of policing. At the same time, everyday citizens should not be hostage to technical language. Instead, the best approach is to historicize the terms and to understand what work they are doing politically, beneath the apolitical veneer of technical jargon.

I told my students that one difficulty many critics of policing and criminal justice face is that they do not always use the same vocabulary as those whom they are critiquing. Even if different sides in a debate are using the same terms, they do not always use them the same way. Imprecision can lead to people talking past each other. For critics, it is important to know what exactly they are talking about. The objects of the criticism will shrug it off if it does not match their vocabulary and experience. One goal I had in teaching the course was to offer my students the tools for participating in public discussions in an informed, historically sensitive, and theoretically robust way. We were not studying history for its own sake. Although learning about the history of policing in 2016 meant that each class discussion threatened to end up concerning the present, we worked hard to distinguish past from present and to resist assuming any direct path from past to present.

Here are my provisional definitions of these terms, to show that they are not interchangeable. I offer them with the hope that more precise usage can help us move beyond stultifying discursive impasses that thwart political transformation.

1. Broken Windows

Broken windows is a theory of policing, articulated by Kelling and Wilson, though with roots going further back. (Kelling also collaborated with others, extensively with William Bratton, today the Commissioner of the NYPD.) The argument is that controlling low-level disorder (the proverbial "broken windows") will prevent more serious crime. Beyond its foundation in metaphor and symbolism, broken windows relies on a key precept, the "developmental sequence." With this term Kelling and Wilson claimed that low-level crime necessarily leads to more serious crime: "at the community level, disorder and crime are usually inextricably linked, in a kind of developmental sequence." Ever since, social scientists have been trying to prove or disprove the claim. Except for studies in a small city in the Netherlands, there is no hard evidence the claim is true, as Bratton recently begrudgingly admitted. When confronted with such arguments, defenders of broken windows policing will often counter that it is not technically a causal argument. But I find no other way to understand it.

Much of the broken-windows theory relies on difficult-to-quantify community sentiment. For example, even if crime levels did not necessarily decrease in the early street-patrol experiments upon which the theory is based, Kelling and Wilson argued that the “presence of officers on foot patrol made people feel safer.” Patrol decisions themselves were supposed to mimic community sentiment, though for Kelling and Wilson, home- and business-owners were the natural representatives of the "community." And cops were to be arbiters of who belonged and who didn't in a given neighborhood. Further, the idea was that leaving broken windows broken or graffitied walls graffitied would confer the sense that the neighborhood was in decline, thereby licensing further crime because strangers-cum-criminals would believe no one was paying attention or cared about the safety of the community members. As many critics have noted, particularly as fiscal austerity grips municipalities across the country, resources that might actually fix the broken windows (or broken lightbulbs, so consequential in cases like Akai Gurley's) are instead allotted to police—and the cracked window panes remain unrepaired. Even the definition of disorder, on which so much in the theory is pinned, remains elusive, self-referential, and subjective: as Kelling and Catherine Coles put it, disorder is "behavior that violates widely accepted standards and norms of behavior, and about which a broad consensus exists, in spite of racial, ethnic and class differences."

Finally, Kelling and Wilson were making an argument about historical transformations in policing that resulted, though they never admitted it, from protest against police racism and abuse. Police professionalization was supposed to routinize policing, to quell graft and corruption, and to upgrade standards, training, and technology. For Kelling and Wilson, this process of regaining police legitimacy also severed cops from communities. They wanted to find a way to return to their conception of an older model, which Walker demonstrated was historical fantasy. Today, critics and cops alike swing from urging greater community involvement to urging withdrawal from communities. One problem here is that the term community remains perilously underspecified and, as it did for Kelling and Wilson, easily becomes synonymous with a single politically connected socioeconomic stratum within a given neighborhood or municipality.

In sum, broken windows policing was an intervention meant to reassert police discretion after police had been buffeted by criticism. It made a causal argument about crime and how to thwart it: focus on small-scale "disorder" to prevent major crime.

2. Quality of Life

Quality-of-life policing derives from the broken windows theory. Sociologist Alex Vitale calls it an "agenda" or "paradigm" of "social control." It is most closely associated with Bratton's first term as Commissioner in New York City and with Mayor Rudy Giuliani, and it is a direct companion to the neoliberalization of urban governance. It individualizes and recasts the results of austerity, morally blaming those most vulnerable to it for what happens when living standards decline for all but the very rich. Like broken windows, it relies on amorphous and broad claims about community sentiment. Whereas broken windows was originally imagined as applying to either poor neighborhoods or transitional neighborhoods (in either direction), quality-of-life policing encompasses other areas of cities. It reframes broken windows for middle- and upper-class dispositions and aesthetics. Most crucially, it connects the idea of market-based urban development to enforcement by police against infractions deemed to contradict market needs. It gives police discretion. If broken windows is a theory, quality of life is more of a tactical police approach. Police have generally witnessed an offense that leads them to act under the practice of quality-of-life policing.

Quality of life is even more direct than the broken windows theory in asserting that, beyond simply a connection between symbols of disorder and crime, the actual people who commit low-level offenses are now or soon will become rapists, murderers, and so on. Typical quality-of-life offenses include panhandling, turnstile jumping, drinking in public, urinating in public, jaywalking, littering, graffiti, hanging out in a park after dark, prostitution and public masturbation (typically against gender-nonconforming and queer people), blocking passage on streets, making loud noise (in cars or outside cars), taking up more than one subway seat, and so on. (In my seminar, the students and I discussed whether men catcalling women on the street should be considered a quality-of-life offense.) As critics have noted, quality-of-life policing, by extending its purview to the more expensive, commercial, and tourist-friendly areas of cities, implies that poor people do not have any concern for the aesthetics of their surroundings, only well-off people or tourists do. This policing approach is proactive as a form of urban governance, aiming to convert specific zones of the city into commercially viable, tourist-friendly areas by repressing and penalizing those who don't fit that vision.

Crucially, because police have usually witnessed an offense or a crime and therefore write a summons or make an arrest under quality-of-life policing, it entails a greater level of intervention than a stop-and-frisk stop, as I will discuss. Quality-of-life policing, critics charge, has allowed police in big cities to create massive databases of offenders. If there is a developmental sequence in play, it is for those people who receive a summons and enter the system. If the summons is not properly adjudicated, the next offense will lead to more severe penalties.

In its focus on managing urban aesthetics and protecting real estate values, quality-of-life policing, based on controlling forms of low-level disorder that police encounter, can catch a wide swath of the population in its net, but critics note that it is most frequently poor, homeless, queer, and young people, especially those of color, who end up ensnared.

3. Zero Tolerance

Zero tolerance is a principle applied to quality-of-life offenses: police will not tolerate them at all. It has the feel of a marketing slogan and is intended to convey toughness, which is why macho, posturing politicians love it. Zero-tolerance policing is strict and results-oriented. Any time a cop witnesses an offense, the offender must be cited, arrested, booked, etc. After years of gutting social-service provisions, in many places zero tolerance translates into zero options other than the criminal-justice system.

The principle is supposed to lessen officers' discretion, which is one reason why cops themselves are not often its advocates—instead, elected officials and police brass are. In practice, discretion never really disappears, and people of color face zero tolerance while white people do not. Officers may use the rhetoric of zero tolerance to justify a summons or arrest when they could easily look the other way. Street-level policing under the theory of broken windows often combines the ideology of zero tolerance with the tactic of quality-of-life enforcement through discretionary deployments, evident in flurries of activity like ticketing blitzes or sweeps looking for specific offenses.

Kelling and Wilson themselves noted that after a set of early 1970s Supreme Court rulings that dismantled vagrancy laws, cops were left with fewer "legal tools to remove undesirable persons from a neighborhood when informal efforts to preserve order in the streets have failed." Quality-of-life policing has effectively replaced those tools. It lacks an explicit reference to status (ie, you can't be locked up because you appear to be poor), which is in part what made vagrancy laws unconstitutional, as shown in Risa Goluboff's fantastic new book Vagrant Nation. The important point is to note that zero tolerance comes to be its own political end, basically superseding the aesthetic imperative for order that underwrites quality of life. With the informal tools failing and old legal tools outlawed, a tough-on-crime regime has often meant a pendulum swing toward zero tolerance. Politicians fear looking soft, so they order the blunt tool of zero tolerance, which ultimately disrupts more lives than it protects. Critics charge that it is criminogenic.

4. Stop and Frisk

Stop, question, and frisk, as Ray Kelly of the NYPD preferred to call it, or stop and frisk, as it was originally called, differs from the three linked terms I have been discussing. It predates all of them, though it also was in some ways a proactive response to the incipient crumbling of vagrancy laws. Police forces in the 1960s, including New York's and Miami's, instituted stop-and-frisk policies. They were intended to give cops on the street a tool that would enable them to conduct highly discretionary quick interrogations without necessarily bringing someone into the station. A key consideration was how to avoid running afoul of the Fourth Amendment's protections, and the words "stop" and "frisk" were intentionally counterposed to "search" and "seizure," which were understood as far more invasive. Whereas a search and seizure requires "probable cause," stop and frisk requires only that the action be based on "reasonable suspicion" that a crime has recently been or is about to be committed. The Supreme Court affirmed this understanding of the legality of stop and frisk in its 1968 Terry v. Ohio ruling. As a result, stop and frisk is also referred to as a "Terry stop." Goluboff shows that amid a series of Supreme Court decisions seen by law-enforcement officials as protecting criminal suspects at cops' expense, Terry was a way to respond to white fears of crime and disorder and to shore up the power of police on the street by putting another legal device in their kit (the decision also was intended to shore up the Court's legitimacy within law enforcement).

Stop and frisk is a tactic or tool for the enforcement of quality of life as much as for far more serious offenses. For an officer to stop and frisk someone, there does not need to be any visible evidence of the violation of quality-of-life ideals, which is the key difference: the cop usually has not witnessed anything but reasonably suspects an offense has occurred or will occur. Kelling and Bratton describe the way it is supposed to work: "officers lacking a warrant may make short-term, forcible stops to intervene in what they reasonably suspect to be criminal activity. If these suspicions prove unfounded, the officers must immediately release the people they have stopped. A Terry stop is generally interpreted to require a well-founded suspicion, not just a hunch.” Yet because stop and frisk, as practiced (and found racially discriminatory) in New York City, was aimed at finding knives and guns, it bypassed the theory of broken windows by going straight for more serious crimes. Yet the statistical likelihood of finding a gun via stop and frisk was so low that for the vast majority of people stopped and frisked the practice became a racialized form of social control unrelated to crime. The point of stop and frisk was not just the search for guns. As Ray Kelly asserted, according to Eric Adams (today Brooklyn Borough President), it was intended to "instill fear" in Black and Brown residents of New York and cause behavioral changes.

Stop and frisk, like zero tolerance, also enacted its own developmental sequence, by creating massive rolls of low-level offenders and sending people to the courts and jails for outstanding warrants and status offenses. Unlike quality-of-life policing and its zero-tolerance variant, stop and frisk effectively could separate police encounters from prosecution and punishment because in most cases there was no prosecution. Instead, the stop itself was punishment in the absence of crime. For that reason, ever since the 1960s, Black political and legal organizations have understood it as a specific form of racial harassment.

5. Order Maintenance

Bratton and Kelling today sometimes seem to prefer the vague term order maintenance to broken windows, though it is tough to discard a brand name. I actually think that order maintenance is a better term because it can encompass all of the above terms. It also captures the ongoing and unfinished character of police work, which is the fabrication and maintenance of a specific type of social order. From Bratton's mouth, "order" is never accompanied by words like capitalist or heteronormative or racial. But critics do not have to look very far to understand what is implied. At the same time, this term highlights how interconnected policing is with other aspects of our social and economic lives, how little policing has to do with crime. As a result, it highlights how challenging it is to imagine a just form of policing in an unjust and economically exploitative system.

Conclusion

These are my key terms and their provisional meanings. I have tried to use police experts' own language and understandings, but these are of course inflected by my own critical and historical analysis, as well as by secondary literature (some listed below). I welcome further comments and ideas. I am exploring order maintenance and broken windows in much greater depth in book-length writing projects now.

Comments

In the couple weeks since I posted this primer, there has been a flurry of new material on Broken Windows and related policing practices. There is little new info, and nothing contradicts what I've written. But it is clear that the topic of policing is not disappearing from critical public scrutiny. Here are some highlights.

The most interesting and important news is a report released by the NYPD's Office of the Inspector General, which demonstrates conclusively that quality-of-life policing in NYC from 2010 to 2015 did not reduce the incidence of violent felonies. To repeat: according to this study, control of misdemeanors does not equal control of felonies. But was anyone surprised by this finding?

Another notable occurrence is the publication of a new book by Heather Mac Donald, an extreme right-wing shill for racist policing practices who works for the Manhattan Institute, the strongest purveyor of the ideological claptrap that even the NYPD Inspector General found to be without merit. The book came out just days after the IG report. Whoops. Mac Donald is one of the inventors of the "Ferguson Effect," a racist cop-exculpating trope masquerading as empirical social science. Her new book The War on Cops seems basically to be an early Cold War piece of propaganda with "Communism" replaced with "Black Lives Matter." The press roll-out for the book included an attack on Alex Vitale, a colleague and friend. He ably defended himself.

Third, the VIllage Voice published two excellent articles on the NYPD. The first, by Nick Pinto, is a deep dive into the NYPD IG report. The second concerns the relationship of Bratton and de Blasio. This is an interesting piece, with valuable analysis of why BdB appointed Bratton in the first place: to appease the white, the well-off, the politically connected. I'm not sure I agree with the conclusions about Bratton's imperviousness, though. It would have been better if the author looked more closely at the possibilities for the upcoming mayoral election. If BdB has any challengers from the Left or any POC challengers, he will drop Bratton. He may do so no matter what. Over the past several months, Bratton has clearly been going off the rails, giving BdB good reason to let him go. Maybe Bratton has signaled that he is ready to leave behind closed doors. As BdB gets pummeled in the press (for good reasons and not), he will need to shore up his support among the coalition that elected him, and firing Bratton will be the best way to do so. More broadly, the NYPD is far too powerful and independent a player in NYC. Like Obama, during his campaign BdB seemed to be more left-wing than he actually is. It's now clear that he never intended, nor does he have the wherewithal, to constrain some of the NYPD's clout. Ultimately, protesters in the streets did achieve that to a good degree, but the nationwide, highly coordinated backlash to Black Lives Matter, centered in NYC and centered on BdB, was a result. How to plan strategically to prevent that from occurring in the future is an imperative movement question, but it is very difficult to answer.

Fourth, I have not yet watched it because I've been traveling, but Frontline aired a new documentary about Broken Windows policing and police reform, which has been accompanied by several useful articles, including one by Jelani Cobb and another by one of the Frontline reporters. I generally love Frontline's relentlessly cynical takes on the news, so I'm looking forward to watching this one.

One of the reasons, I would argue, there is not a great deal of new ideas in this flurry of activity is the attachment of nearly all the voices to the ideological nugget of "evidence-based policy." It is meant to delineate the evacuation of politics and ideology from analysis, but--newsflash!--that is impossible. Now that I am at Harvard University, where many of these discussions are taking place in earnest, I have noted how pervasive that framework is. I've seen how it can be wielded like a police baton to shut down dissent. You don't have to be a reader of critical theory to notice the problems: even a review by a law professor from NYU in TheNew York Times of Mac Donald's book pointed out that she and an opponent from Havard both act as if they are the only ones with evidence-based policy recommendations to offer--even though they are diametrically opposed. In the aftermath of Brexit and during the Trump ascendancy, I can understand why some people want to cling to evidence, empiricism, and positivism, but these will not save the world. One very good article on Brexit that I read pointed out that when people say "evidence-based policy," they typically mean "policy-based evidence." The same is true with policing. And without a reflexive and explicit acknowledgment of the political stakes and one's own standpoint, appeals to neutral evidence will continue to reproduce the status quo of neoliberal, white supremacist carcerality.